ABA Panel Would Weaken Code Governing Judicial Conduct

By Adam Liptak - Published February 6, 2007

A commission of the American Bar Association has
recommended that the group weaken its code of judicial conduct by changing, from
a mandatory rule to nonbinding advice, an instruction to judges to "avoid
impropriety and the appearance of impropriety."

Supporters of the change say disciplining judges for violating a concept as
vague as "the appearance of impropriety" is unfair. Opponents denounce any
retreat from the longstanding and widely embraced standard, and one critic -
Robert H. Tembeckjian, the administrator of the New York State Commission on
Judicial Conduct - has resigned in protest as an adviser to the A.B.A.
commission.

"At a time when the A.B.A. is defending judicial independence from relentless
attack," Mr. Tembeckjian wrote in a resignation letter on Saturday, "I cannot
imagine that either the judiciary or the public will applaud the A.B.A. for
relegating the 'impropriety and appearance of impropriety' standard to a
virtually meaningless phrase."

The change is part of what would be the first comprehensive revisions to the
association's Model Code of Judicial Conduct since 1990; the revisions now go
before the group's House of Delegates, which meets in Miami next week, before
they can become formal policy. Individual states often look to the model code as
a template for their own judicial ethics codes, violation of which can lead to
punishment as severe as removal from the bench.

The change was a late-breaking development, coming more than three years after
the commission began a periodic review of the code. The very first canon
of the proposed revisions continues to say that judges "shall avoid impropriety
and the appearance of impropriety."

But recently added language in the introduction to the code says that while that
and other canons provide "important guidance," judges cannot be disciplined for
violating them. The canons are followed by rules that are more specific (judges
may not, for instance, use the prestige of their offices for financial
advantage), and the new introduction says that only those rules may serve as the
basis for discipline.

Cynthia Gray, the director of the Center for Judicial Ethics of the American
Judicature Society, a nonpartisan group promoting judicial independence and
integrity, questioned the commission's strategy. "To leave it in the
language and later say the language doesn't count," Ms. Gray said, "is strange
and inexplicable to us."

Mark I. Harrison, the chairman of the A.B.A. commission, said the "appearance of
impropriety" standard was vague and added nothing to the rules prohibiting
specific conduct that remain mandatory.

"We think it's a step forward," Mr. Harrison said of the commission's decision.
"It is important as a matter of due process and fairness to make clear what
would be the basis for disciplinary enforcement without ambiguity and without
confusion."

Jonathan Lippman, New York's chief administrative judge, disagreed, saying the
"appearance of impropriety" standard was sensible and workable. "I don't think
this is nuclear science," he said. "Judges overwhelmingly approve of that
standard as a basis on which to go about their daily business."

The association has urged judges since 1924 to avoid the appearance of
impropriety, and returned to the subject in 1972 and 1990. "Every time the
A.B.A. addressed this standard, it was strengthened," Mr. Tembeckjian wrote in
his resignation letter. "Until now."

Victoria Henley, the president of the Association of Judicial Disciplinary
Counsel, whose members hear and consider complaints against judges, said the
recent revisions were unlikely to gain wide acceptance. "If they basically gut
the 'appearance of impropriety' standard," Ms. Henley said, "it's unlikely that
the A.B.A. will continue to be responsible for drafting a model code that will
be used by any state."

FOOD FOR THOUGHT

Many times the reason or purpose for events in our life initially escapes us,but I am certain we can find reason and/or purpose in everything that happens!

It takes a short time to learn to exercise power, but a lifetime to learn how to avoid abusing it.

We are no longer a country of laws, we are a country where laws are "creatively interpreted."